Pratt, In re, Cr. 37534

• Decision Date: 03 December 1980
• Docket Number: Cr. 37534
• Citation: 112 Cal.App.3d 795,170 Cal.Rptr. 80
• Court: California Court of Appeals Court of Appeals
• Parties: In re Elmer G. PRATT on Habeas Corpus.

Page 80

170 Cal.Rptr. 80

112 Cal.App.3d 795

In re Elmer G. PRATT on Habeas Corpus.

Cr. 37534.

Court of Appeal, Second District, Division 1, California.

Dec. 3, 1980.

As Modified Dec. 8, 1980.

Stuart Hanlon, Margaret Ryan, San Francisco, John B. Mitchell, Lewis Myers, Fred Okrand, Mark Rosenbaum, Los Angeles, Leonard I. Weinglass, Newark, N. J., Victor Goode, Jonathan Lubell, New York City, and Paul N. McCloskey, Jr., Palo Alto, for petitioner

Laurence R. Sperber, Los Angeles, for amici curiae (see fn. 2, infra ) on behalf of petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen., for respondent.

L. THAXTON HANSON, Associate Justice.

INTRODUCTION

In 1972 following a protracted trial a jury convicted petitioner/defendant Elmer Gerard Pratt (hereinafter defendant and/or Pratt) of the murder in the first degree (Pen.Code, § 187) of Caroline Olsen in Santa Monica on December 18, 1968 (known as the "tennis court murder"); of two counts of robbery in the first degree (Pen.Code, § 211); and of assault with intent to commit murder on Kenneth Olsen (Pen.Code, § 217). The jury also found he was armed with a deadly weapon (pistol) in connection with each offense. The judgment of conviction was affirmed on appeal by Division Four of this District in an unpublished opinion (2 Crim. No. 22504). The California State Supreme Court unanimously denied defendant's petition for a hearing.

Defendant Pratt is presently serving a life sentence in state prison for the murder of Caroline Olsen and the commission of the other crimes of which he was convicted. By this petition for writ of habeas corpus he seeks his release from prison essentially on the grounds that the Federal Bureau of Investigation (FBI) reports obtained through the Freedom of Information (FOI) Act disclose that key prosecution witness Julius C. Butler during the trial in 1972 "was informing to the (FBI), a fact he denied, under oath, at petitioner's original trial," that "the FBI concealed and withheld surveillance evidence corroborative, in part, of (defendant's) alibi defense"; and that the FBI "had a spy in the defense camp" during the trial.

By reason of the extremely serious allegation by current defense counsel (a) that "a totally innocent man has languished in the San Quentin and Folsom prisons since mid-1972, and that ... he was sent there as the result of a case which was deliberately contrived by agents of our state and federal governments " (pet. for writ of habeas corpus filed in the Super. Ct. of Los Angeles County which has been incorporated by reference with the pet. for writ of habeas corpus filed with this court); and (b) that the assertion in the petition for writ of habeas corpus lodged in this court that defendant Pratt's "conviction was the result of a joint effort by state and federal governments to neutralize and discredit him because of his membership in the militant (Black Panther Party) " which committed "a fraud upon the court and jury ", we have ordered up, pursuant to California Rules of Court, rule 60, for review along with the extensive record of the petition before this court the entire record of the 1972 jury trial, including pertinent exhibits, and the record of the petition for writ of habeas corpus previously filed in the superior court which was denied. (See also Cal. Rules of Court, rule 12(a).)

In addition to the foregoing and by reason of the nature of these proceedings; the public interest generated by persons or groups seeking to obtain defendant Pratt's release from prison as evidenced by newspaper articles; the personal involvement of United States Congressman Paul N. McCloskey, Jr., 12th District of California; ¹ the large list of individuals and organizations appearing as Amici Curiae ² on behalf

of defendant Pratt; and the accusation by defense counsel that a court of this state was "implicated" in the "cover up" of the "framing" of Pratt (see fn. 5, infra ), a more detailed treatment than usual of the series of events leading up to this proceeding, the trial evidence, and an analysis of the FBI documents supplied this court is deemed necessary in order to place the entire case in proper perspective.

CHRONOLOGY OF EVENTS

In order to render the great mass of evidence and the court actions contained in the very extensive record more manageable and understandable, interspersed below in chronological order are the key out-of-court events which triggered subsequent governmental or defense actions and the court actions resulting therefrom.

On December 18, 1968, at about 8 o'clock in the evening Kenneth Olsen and his wife Caroline Olsen, who was also a schoolteacher, went to the Lincoln Park Tennis Courts in Santa Monica to play tennis. After they had put money into the light meter and turned on the lights, they were accosted by two armed black males who ordered them to lie face down on the pavement. They were relieved of their valuables which were on a nearby bench and then the gunmen turned and from a distance of 8 to 10 feet opened fire upon the Olsens as they lay helpless, face down, on the tennis court pavement. Caroline Olsen subsequently died as a result of two gunshot wounds which she received. ³ Kenneth Olsen was hit five times and although he bled profusely, he survived the ordeal. ⁴

Three expended .45 caliber automatic pistol shell casings and three lead slugs (one underneath Mrs. Olsen) found at the scene of the crime by Officer Richard Plasse of the Santa Monica Police Department were marked and booked into evidence. A slug was also removed from Mrs. Olsen's body in the emergency room at the hospital and booked into evidence.

On January 17, 1969, at about 2 o'clock in the afternoon (about one month after the "tennis court murder" in Santa Monica) Al Prentice ("Bunchy") Carter and John Huggins, officers in the Black Panther Party (BPP), were shot to death in the cafeteria at Campbell Hall on the U.C.L.A. campus. The killings occurred during a joint meeting of about 400 members of the Black Student Union (BSU) and members of the BPP and another rival black militant group called United Slaves (US) incorporated. There was a lot of friction between the Black James F. Naveau, a state police officer assigned to the U.C.L.A. campus with the job of penetrating subversive militant groups on campus, infiltrated and became a member of the Students for a Democratic Society (SDS) and was also a member of the Friends of the BPP.

Panthers and US to take over the BSU and the assassinations of Carter and Huggins were attributed to the US organization.

Officer Naveau testified at a subsequent defense motion to suppress as evidence (pursuant to Pen.Code, § 1538.5) the .45 caliber automatic pistol later determined to be the murder weapon in the Olsen case. He said that "there was a lot of friction between the Black Panthers and the US to take over the black student union." Officer Naveau went to Campbell Hall when he heard of the killings and met a Joe Brown who said: "They just blew up two of my brothers." When asked "who", Joe Brown said: "US". Joe Brown told him (Officer Naveau) that other Panthers "had split to go to John's (John Huggins') pad to get the shit (weapons or explosives) and a lot of US people and a lot of L.A.P.D. pigs were going to get blown up that night." Officer Naveau knew John Huggins' address was 806 Century Boulevard in Los Angeles. He immediately communicated this information to his immediate supervisor of the campus police (Captain Lynn) and to Sergeant Davis of the L.A.P.D. Intelligence Division as well as Jim Clark of the state C.I.I.

Officer Lloyd R. Lucy of the L.A.P.D., according to his testimony at the hearing of the defendant's pretrial motion to suppress the murder weapon, testified that after he had received the information from Officer Naveau he and other L.A.P.D. officers in order to prevent bloodshed proceeded to the Huggins residence at 806 West Century Boulevard where they observed Melvin Carl Smith and Lujuana Campbell emerge carrying a rifle and a metal-type military ammunition box to a car. This car was stopped by the police shortly after it departed the area, Lujuana Campbell had a loaded .45 caliber automatic pistol in the waistband of her capris, and there was a .30 caliber rifle, ammunition, camping gear, gas masks and medical supplies found in the car. Defendant Pratt was arrested while crouching behind a station wagon parked in the driveway outside the building. Pratt was unarmed. However, a large arsenal of weapons was found inside the location including an M-1 Garand rifle, Browning automatic shotgun, J. C. Higgins shotgun, 7.65 millimeter pistol, three .45 caliber automatic pistols, three knives and a bayonet.

One loaded .45 caliber automatic pistol found by Officer Jim Finn on a table adjacent to a second floor window overlooking the front of the premises was later determined by a ballistic expert to be the weapon used in the "tennis court murder" of Caroline Olsen on December 18, 1968. (See trial evidence infra.)

On August 10, 1969 (about seven months and three weeks after the "tennis court murder"), Julius Carl Butler, also known as "Julio", met with Sergeant Duwayne Rice, a black officer of the 77th Division of the L.A.P.D., whom he knew socially and trusted as a friend and handed Rice a sealed envelope. When Butler handed the envelope to Sergeant Rice, he told Rice that he felt there was a contract out on his life, that he may be killed and that if anything happened to him to read it and give it to his mother. The envelope on the outside had written on it "Sgt. Rice" and "Only to be opened in the event of my death." (See infra concerning the circumstances surrounding the writing, sealing and delivery of the envelope to Sergeant Rice.)

Sergeant Rice retained the envelope in his possession unopened for five or six months....